Joint Committee On Human Rights Seventeenth Report

Destitute asylum-seekers and their dependants outside accommodation centres

63. Everyone in accommodation centres would be an asylum-seeker or a dependant of an asylum seeker, but not all destitute asylum-seekers would be in accommodation centres. A number of provisions in the Bill are concerned with support for asylum-seekers who are, for one reason or another, residing in the community. Such people are entitled, at common law, not to be left destitute (in the absence of clear words in an Act of Parliament unequivocally denying them support, or unambiguously authorising the denial or withdrawal of support).[75] They are entitled, in international law and under the Human Rights Act 1998, to be free of inhuman or degrading treatment, a right which imposes certain positive obligations on the State and on public authorities.[76] In addition, everyone is entitled in international law to 'an adequate standard of living for himself and his family, including adequate food, clothing and housing ...'[77] This entitlement is to be exercised 'without discrimination of any kind as to race, ... national or social origin, ... or other status.'[78] In the light of those rights, this section of the Report considers—

      (a)  the accommodation of asylum-seekers without places in accommodation centres,

      (b)  the accommodation of asylum-seekers who are required to leave accommodation centres, and

      (c)  other (including financial) support for asylum-seekers who are not accommodated in accommodation centres.

Accommodation for asylum-seekers in the community

64. We have already drawn attention, in an earlier report, to the need for adequate housing, appropriate to people's needs, to be available to those without adequate housing, in order to fulfil the requirements of ICESC Article 11(1).[79] Under the Housing Act 1996, section 160A (inserted by the Homelessness Act 2002), local authorities are not permitted to make available housing stock to house people who are subject to immigration control, such as asylum-seekers. In its reply to the Committee's inquiry about the Homelessness Bill, the Government drew attention to the availability of other forms of support for asylum-seekers, including support under the National Assistance Act 1948 (which could include housing) for people in urgent need, and the duties of local authorities towards children under the Children Act 1989. In relation to the former, we pointed out that it was not entirely clear that support under the 1948 Act would be available to all those who might otherwise be left destitute.[80] In addition, housing benefit is not payable to asylum-seekers.[81] The Secretary of State can, however, provide adequate accommodation for asylum-seekers who would otherwise be unable to obtain it,[82] and clause 38(6) would amend section 95(3)-(8) of the Immigration and Asylum Act 1999 and other legislation to ensure that accommodation could be provided for a destitute asylum-seeker whenever the person's claim to national assistance would be excluded. However, this would apply only in relation to eligible persons. Clause 48 of, and Schedule 3 to, the Bill would restrict eligibility, providing that support (including that under the National Assistance Act 1948 and the Bill itself) would not be available to people (or their dependants) if the person has refugee status in another country, or is a citizen of an EEA State, or is a failed asylum-seeker who refuses to co-operate with removal directions, or is in breach of immigration laws. On the other hand, under paragraphs 2 and 3 of Schedule 3, a person would not be ineligible if he or she is a child, or is covered by exceptions set out in regulations to made by the Secretary of State, or has rights under the ECHR or under European Community treaties which require the exercise of a power or the performance of a duty to offer support. These exceptions should be sufficient to give adequate protection to the rights of children under the CRC, and to people's rights under the ECHR and Article 11(1) of the ICESC.

65. In cases where the local authority does not provide housing under either the National Assistance Act 1948 or (where applicable) the Children Act 1989, the Bill would originally have conferred a discretion on the Secretary of State to assist, rather than imposing a duty on him. This made it possible that a destitute asylum-seeker might be reduced to circumstances in which he or she would lack adequate housing through no fault of his own. This could lead to a violation of the right to adequate housing under ICESC Article 11(1), or to the asylum-seeker enduring conditions which amount to degrading treatment contrary to ECHR Article 3 (which imposes certain positive obligations on the State to provide support for the right). As asylum-seekers inevitably form a group which is treated as having fewer rights to social housing, and are in a special category defined by reference to their position as non-British citizens seeking asylum, there might also be violations of the non-discrimination requirements of ICESC Article 2(2) taken together with Article 11(1), and of ECHR Article 14 taken together with Article 3.

66. The Department does not accept that ICESC Article 11(1) would be breached unless the conditions were such as to violate ECHR Article 3 (right to be free of degrading treatment). Nor does it accept that treating asylum-seekers differently from other people would engage any of the anti-discrimination provisions.[83] We cannot agree. The right to adequate housing under ICESC Article 11(1) cannot properly be read as requiring merely that people should not be so badly housed that it amounts to degrading treatment, unless one greatly expands the meaning of degrading treatment. Not only must accommodation not be degrading, but it must be adequate for the needs of those who have to reside in it.[84] In relation to the guarantee of non-discrimination, we note that the class of asylum-seekers is defined partly by reference to the national origin of asylum-seekers: only people who are not British citizens apply for refugee status here. Furthermore, the provisions prohibit discrimination on the ground of 'other status'. While this has not yet been interpreted as including asylum-seekers, it is important to remember that the range of grounds on which discrimination is unlawful under, for example, ECHR Article 14 is not closed, and it is strongly arguable that discrimination against asylum-seekers as such might be held to be unlawful if it had the effect of systematically denying them protection for their human rights and fundamental freedoms. The burden would be on the Department to establish that any difference in treatment could be justified by reference to objective and rational justifications.

67. In relation to the children of destitute asylum-seekers, the Department, replying to our questions about the Homelessness Bill, drew attention the duties of local authorities under the Children Act 1989 (which has equivalent provisions in Northern Ireland and Scotland). At the time when we were examining the Homelessness Bill, it was not clear whether or not the power of local authorities under the Children Act 1989 extended to providing housing for the families of children who were destitute. The Court of Appeal subsequently decided that local authorities have a discretion (but not a duty) to do so, taking account of the right of members of a family to mutual support and the enjoyment of one another's companionship (an aspect of the right to respect for family life under ECHR Article 8).[85] Clause 41 of the current Bill, as amended on Report in the House of Commons, would amend the Immigration and Asylum Act 1999 by substituting a new section for section 122. The proposed new section would for the first time impose a duty on the Secretary of State to provide support for the dependant children of an eligible asylum-seeker who applies for support. The Secretary of State would have to support the child as part of the asylum-seeker's household. In such a case, the local authority (or authority in Northern Ireland) would not be allowed to provide support under section 17 of the Children Act 1989, section 22 of the Children (Scotland) Act 1995, or Article 18 of the Children (Northern Ireland) Order 1995, unless the provision were to be disapplied by the Secretary of State in specified circumstances. This should ensure family life will be respected, and that dependent children would not be separated from their families and taken into care. It ought to be capable of protecting rights under ECHR Article 8 and the CRC. We welcome the provision.

68. We asked the Secretary of State whether he would normally regard it as appropriate to exercise his discretion in favour of providing assistance with housing to a destitute asylum-seeker and his or her dependants where there would otherwise be a risk of a violation of rights under any of those provisions. The Department informed us[86] that the National Asylum Support Service (NASS) would offer support to an asylum-seeker who makes a first application for support and who is destitute or is likely to become destitute within a prescribed period (currently 14 days), as it currently does under section 95(1) and (2) of the Immigration and Asylum Act 1999. We welcome this assurance, which should enable people to alleviate the most serious risk of violations of ECHR Article 3, although we are concerned to have received evidence about serious shortcomings in the ability of NASS to cope with the demands of assisting asylum-seekers who have been dispersed round the country, compounded by what the National Association of Citizens Advice Bureaux has described as 'the inaccessibility of NASS to both supported asylum seekers and their advisers.'[87]

69. After a person's application for asylum has been finally rejected, the period of grace currently enjoyed before the asylum-seeker and any dependant ceases to be eligible for support in respect of accommodation would be removed.[88] Instead, the Secretary of State would have a discretion.[89] This harmonizes the law in a way which is capable of avoiding a situation in which a destitute asylum-seeker would suffer inhuman or degrading treatment under ECHR Article 3. Although the support from the Secretary of State would be provided as a matter of discretion rather than as of right, it is strongly arguable that the Secretary of State, as the only public authority under the legislation with power to provide accommodation for destitute adult asylum-seekers, would have a positive duty under section 6 of the Human Rights Act 1998 to exercise the discretion by providing accommodation in a case where the asylum-seeker or his or her dependant would otherwise be at risk of suffering inhuman or degrading treatment by reason of lack of accommodation.

70. Where an asylum-seeker or his or her dependant is destitute but is not at risk of degrading treatment contrary to ECHR Article 3, the Secretary of State would have a discretion to provide assistance with accommodation. We asked the Government whether the discretion would be exercised in favour of the destitute person unless there was a good reason to deny assistance, based on the circumstances of the individuals concerned. The Department answered[90] that NASS would provide support initially, as noted above. It went on to point out that the Secretary of State would have a discretion to provide support for a person who had been required to leave an accommodation centre because of having breached a condition of residence, but the Department did not consider that withdrawing support as a result of breach of a condition would in itself breach ECHR Article 3. The Department assured us that careful consideration would be given to the potential Article 3 implications of each case, but, subject to that, the Department thought it reasonable that the Secretary of State should be able to take account of a breach of a condition when deciding whether to withdraw or reinstate support.[91]

71. We accept that this should make it possible to ensure that the requirements of ICESC Article 11(1) were met: when providing accommodation, the Secretary of State would be required by clause 38 to ensure that accommodation is adequate to the person's needs. This would also enable the Secretary of State to ensure that asylum-seekers were no more at risk of suffering violations of ECHR Article 3 or ICESC Article 11(1) than people of other national origins or status.

The power to exclude asylum-seekers from accommodation centres

72. The Secretary of State or the manager of an accommodation centre would have power to require a destitute asylum-seeker, together with any dependant, to leave an accommodation centre if the asylum-seeker or a dependant had breached a condition of residence there.[92] We accept the Department's view that it is reasonable to impose reasonable conditions for the provision of support.[93] While requiring a person to leave an accommodation centre might engage ECHR Article 3[94] or Article 8, matters which would have to be taken into account when the decision was being made, it might equally leave them destitute (within the meaning of the Bill) without violating a Convention right. The Secretary of State could provide or assist in securing accommodation elsewhere under sections 4, 95 and 96 of the Immigration and Asylum Act 1999. In deciding whether to do so, the Secretary of State could (but need not) take account of the fact that a condition of residence had been breached.[95] If accommodation were denied as a result, the person (and any dependant) might be homeless.

73. The Department considers that this would be reasonable, especially as the Secretary of State would have a discretion to reinstate support later, taking account of any emerging danger of a violation of ECHR Article 3. We accept that this is so. We have previously noted that 'a person who has been offered housing and has refused it, or has refused to co-operate with efforts to assist him or her, can be seen as largely responsible for any deterioration in health which results', even if that gives rise to a threat of degrading treatment.[96] Breaching a residence condition, if sufficiently serious, might fall into this category, relieving the Secretary of State of the legal obligations arising under the ECHR and the ICESC.

74. However, it would be much more difficult to justify refusing to assist a person who has been deprived of accommodation because of the behaviour (breach of a residence requirement) of another person. We are glad that the Department has confirmed that the personal responsibility of an applicant would be taken into account when making decisions about support.[97] We welcome the Department's commitment to issue guidance to caseworkers to clarify the proper approach in such cases, and to make the guidance publicly available.[98]

75. If a person who is required to leave a centre had been required to reside at the centre as a condition of temporary admission to the United Kingdom, he or she would automatically be treated as having broken the condition for temporary admission.[99] It would be possible to appeal to an asylum support adjudicator against a decision to require a person to leave an accommodation centre.[100] If a decision to require someone to leave a centre led to a decision to remove or deport the person, there would be a further right of appeal to an adjudicator against the removal decision.[101] These procedures seem likely to be capable of providing adequate safeguards for rights under human rights instruments, as long as appropriate legal advice is readily available in a timely way (as to which, see paragraphs 40-44 above).

Non-accommodation support for asylum-seekers

76. Clause 38 of the Bill would amend section 95 of the Immigration and Asylum Act 1999, concerning the Secretary of State's power to provide for destitute asylum-seekers and their dependants (as defined in the Bill, supplemented by any regulations made by the Secretary of State) to receive help with 'food and other essential items'[102] (to be defined in regulations) if they do not have them and cannot obtain them. The proposed amendment would allow the Secretary of State to make regulations withdrawing the 'support-only' option (i.e. support without accommodation) from asylum-seekers, either generally or in specified circumstances. The Department has undertaken to take account of the need to comply with Convention rights.[103] It will not be possible to say conclusively whether the scheme meets human rights standards, including the duty not to discriminate, until the regulations have been drafted.[104] However, the power in clause 38(8) to make regulations is unclear. It includes power to make regulations to enable or require the Secretary of State, when deciding whether a person is destitute, to have regard to income which the person or a dependant of his might reasonably be expected to have, support which might reasonably be expected to be available to him or a dependant of his, and assets which he or dependant of his might reasonably be expected to have.[105] We are concerned that regulations allowing such assumptions to be made may be incompatible human rights standards, leaving people liable to a state of degradation without support, and failing to satisfy standards of legal certainty. We hope that the scope of the powers will be clarified, and regard it as essential that any such regulations receive careful parliamentary scrutiny on human rights grounds, as they would be ultra vires to the extent of any incompatibility with a Convention right.

77. The Secretary of State would also be empowered by proposed new section 95(7) of the Immigration and Asylum Act 1999, to be inserted by clause 38(6) of the Bill, to specify what are and are not to be regarded as essential living needs for the purpose of attracting support. The Department's response to the Committee makes it clear that the Convention rights implications of any such regulations are being considered. The Department is also aware that any regulations would be ultra vires to the extent of any incompatibility with such rights. We hope that the Department will consult us about the drafting of the regulations at the appropriate time.[106]

78. Clause 42 of the Bill would allow the Secretary of State to deprive a person of support available under Parts 2 and 3 if he or she did not comply with conditions on which temporary admission or release from detention has been granted under Schedule 2 to the Immigration Act 1971, section 9A of the Asylum and Immigration Act 1993, and clause 53 of the current Bill. This could give rise to a violation of ECHR Article 3. The Government points out that the support could be reinstated if withdrawal gave rise to a risk of a violation of Article 3 and the person agreed to comply with the conditions.[107] This argument is misconceived. The Government's approach makes it sound like compliance is a matter of discretion, whereas the State's duties under ECHR Article 3 are absolute and carry with them positive obligations of assistance. It is a matter of entitlement, not discretion.

79. As the only public authority with effective power to offer ongoing support to asylum-seekers, the Secretary of State may well be under a duty to provide such support, by virtue of section 6 of the Human Rights Act 1998. There may be an exception if the person's behaviour makes it proper to regard him rather than the State as responsible for his own suffering. Even then, however, the Secretary of State might be under a duty under ECHR Article 3 to assist the person's dependants if they had not been responsible for the person's behaviour. We asked the Secretary of State to confirm that support would be reinstated if there were to be a risk of degrading treatment under Article 3. The Department's response was equivocal:

    Where support has been ended it remains open to an asylum seeker to apply for it to be reinstated. In considering whether to reinstate support, consideration would be given to any representations that failure to provide support would constitute treatment contrary to Article 3 of the ECHR.[108]

We draw the attention of each House and the Department to the absolute and unqualified nature of the obligations on the State under Article 3, and hope that Ministers will accept this in the course of debate.

80. We asked the Secretary of State about the limitation of the level of support to 70 per cent of the income support level. We were concerned that this might discriminate against asylum-seekers in the enjoyment of their rights, contrary to ECHR Article 14 (taken together with Articles 3 and 8) and ICESC Article 2(2) (taken together with Article 11(1)). As already noted, the Department does not accept that discriminating against asylum-seekers as such engages any of the prohibited grounds of discrimination under the anti-discrimination provisions in the treaties. We have already given our reasons for being doubtful about the validity of that claim.[109] None the less, we accept that there are aspects of the position of asylum-seekers which make it possible to justify, objectively and rationally, a different level of support, particularly where the person concerned is receiving accommodation which includes the provision of furniture and domestic equipment at public expense.[110] We would expect, however, that the level of support would be sufficiently flexible to take account of cases in which asylum-seekers are not receiving accommodation as well as other support, at any rate until such time (if it ever arrives) as the 'support-only' option is withdrawn from all asylum-seekers.

Child refugees

81. The Bill does not substantially change the position in respect of asylum-seekers under the age of 18 who are not dependants of adult asylum-seekers. The Refugee Children's Consortium has suggested that their position calls for attention on human rights grounds.[111] This is a complex issue, particularly as it relates to the duty not to discriminate. However, local authorities have responsibilities under Part III of the Children Act 1989 for unaccompanied asylum-seeking children, and the Government has said that it plans to support local authorities. As well as removing adults who pose as children from the system at an early stage, the Government will help by providing for exchange of information and best practice and looking into joint commissioning of suitable accommodation.[112] In the Bill, it is proposed to allow the Government to make grants to local authorities to help with the costs of caring for unaccompanied asylum-seeking children.[113] These provisions seem to us to provide an appropriate way of protecting the rights of these children under the CRC and other human rights instruments.

75   R. v. Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants [1997] 1 WLR 275, CA Back

76   ECHR Art. 3 Back

77   ICESC, Art. 11(1) Back

78   ICESC, Art. 2(2). Developing countries are permitted to determine to what extent they guarantee the rights under the Covenant to non-nationals, but the UK would not be regarded as a developing country Back

79   First Report of 2001-02, Homelessness Bill, HL Paper 30, HC 314, p. vii, para. 9 Back

80   ibid., paras. 7, 10 Back

81   Immigration and Asylum Act 1999, s. 115 Back

82   Immigration and Asylum Act 1999, s. 96(1) Back

83   Home Office Memorandum, paras. 38 and 42, Ev 7 Back

84   See, e.g., the decision of the Constitutional Court of South Africa in Government of South Africa v. Grootboom (2000) 10 BHRC 84, holding that the duty to provide adequate housing under the Constitution of South Africa was not limited to circumstances in which there was a risk that people would suffer degrading treatment as a result of failure to provide it Back

85   See R. (on the application of W.) v. Lambeth London Borough Council, The Times, 23 May 2002, CA Back

86   ibid., para. 36 Back

87   CAB Briefing: Nationality, Immigration and Asylum Bill, House of Commons-Committee, with Annex, reproduced as an Annex to this Report, Part 3, Ev 11-16. See also JUSTICE, The Nationality, Immigration and Asylum Bill: JUSTICE's briefing for the second reading in the House of Commons, reproduced as an Annex to this Report, Part 2, para. 2, Ev 25 Back

88   Clause 38 of the Bill, amending s. 94 of the Immigration and Asylum Act 1999 Back

89   Section 4 of the Immigration and Asylum Act 1999, as it would be amended by clause 42(1) of the Bill Back

90   Home Office Memorandum, para. 36, Ev 6 Back

91   ibid., paras. 36-39, Ev 6-7 Back

92   Clause 27(4), (5) Back

93   Home Office Memorandum, para. 38, Ev 7 Back

94   As the Department acknowledges, ibid. Back

95   Clause 27(8) Back

96   First Report of 2001-02, Homelessness Bill, HL Paper 30, HC 314, p. vii, para. 9 Back

97   Home Office Memorandum, para. 40, Ev 7 Back

98   ibid., para. 43, Ev 7 Back

99   Clause 21(4) Back

100   Clause 47, proposing to substitute a new s. 103(1) and (3) in the Immigration and Asylum Act 1999 Back

101   Clause 65(2)(i) or (j) Back

102   This phrase would replace 'essential living conditions' in the Immigration and Asylum Act 1999: se clause 39(1) and (2) Back

103   Home Office Memorandum, para. 44, Ev 7-8 Back

104   As the Society of Legal Scholars (Immigration and Refugee Law Section) has pointed out in its submission (reproduced as an Annex to this Report), the lack of draft regulations accompanying the Bill prevents proper scrutiny of the legislation, Ev 28-32 Back

105   Clause 38(8)(b), (c) and (d) Back

106   Cf. Home Office Memorandum, para. 45, Ev 8 Back

107   Explanatory Notes, para. 335 Back

108   Home Office Memorandum, para. 46, Ev 8 Back

109   See para. 66, above Back

110   Home Office Memorandum, para. 47, Ev 8 Back

111   Refugee Children's Consortium, The Nationality, Immigration and Asylum Bill: Second Reading Briefing, Ev 42-45 Back

112   White Paper, Cm. 5387, p. 62, paras. 4.59-4.60 Back

113   Clause 42 Back

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